JUDGMENT
Usha Mehra, J.
(1) Petitioners have challenged the notification under Section 4 read with Section 17(1) of the Land Acquisition Act (in short the Act) issued by Delhi Administration, dated 6th March, 1987, published in the Indian Express on 8th March, 1987. Declaration was made on 10th March. 1987 under Section 6 of the Act. The challenge to the said notification is primarily based on three grounds namely (0 lack of urgency; (ii) fraud on the powers of appropriate Government and lastly (iii) that the acquisition of the property by the respondent for official use is contrary to the approved use of the property i.e. residential.
(2) Facts are brief and not in dispute. The property in Question was originally owned and belonged to a partnership firm M/s Partabmull Rameshwar. The firm purchased this property in the name of one of its partners. Shri Rang Lal Bagaria vide sale deed dated 23rd July, 1963. The property tell to the share of petitioner .No. 1, Shri Dhan Raj Bagaria and of Shri Deowki Nandan Bagaria, predecessor ol: petitioner No. 3. Presently this property is jointly owned by the petitioners. This bunglow No.3 TilakMarg, New Delhi, Along with open land is situated on a plot No. 2, Block No. 169. measuring 2.1 acres. This bungalow was requisitioned by the Government in the year 1943 under the defense of India Rules vide order dated 8th July, 1943. However, subsequently it was derequisitioned vide order dated 19th January, 1966. The Collector of Delhi issued on 20th July, 1969 show cause notice as to why the property be not requisitioned under sub-section (1) of Section 3 of the Requisition and Acquisition of Immoveable Property Act, 1952 Petitioners filed objections against the said show cause notice but the same was dismissed. Appeal preferred against the same was accepted vide Older dated 8th December. 1969 and the notice was cancelled. A fresh show cause notice under Sub-section (1) of Section 3 of the said Act was issued indicating to acquire the property for a public purpose namely “housing offices” of the Delhi Administration. Objections and the subsequently appeal filed against the same were dismissed. Consequently possession of the property was taken over on 23rd September, 1972 and thereafter handed over to the Directorate or Transport, Delhi Administration. Delhi. The said Department in turn has been running the office of its Licencing Officer in the property in question.
(3) That the Delhi Administration vide the impugned notification dated 6th March. 1987. invoked the urgency provisions. The purpose for acquisition mentioned in the notification is “housing Government offices”. Said notification further stated that the provision of Section 5A of the Act would not apply in view of urgency provision under Section 17(1) of the Act.
(4) That the petitioners have based their challenge to the impugned notification on the ground that the notification nowhere stales the urgency of taking the possession particularly when the possession of the premises was already with the Delhi Administration. In the absence of which the notification is bad in law. moreover by invoking the provisions of 17(1) of the Act the petitioners have been deprived of their right to file objections under Section 5A of the Act. This being a residential building could not have been acquired for commercial purpose. Even the Delhi Development. Authority (in short the DDA) refused to accept to the request of the Delhi Administration for converting its user from residential to commercial or for any other purpose except residential The use of the building for commercial purpose is against the approved use mentioned in the Master Plan of Delhi and the terms of the lease deed executed by the owners of the property with the President of India at the time of purchase of this property. In fact the whole exercise of acquiring this building was a fraud on the powers of the respondent. Delhi Administration on the other hand in iis counter affidavit not only refused these averments but look the stand that this building was urgently needed for housing office of the Licencing Officer of the Delhi Transport Authority and that this building was so used as such for the last more than 25 years. It was the case of the respondent that on account of acute shortage of accommodation the Government had to invoke the provisions of Section 17(1) of the Act.
(5) Mr. Arun Jaitley, Sr. Advocate, appearing for petitioners contended that so far as first challenge to the notification under Section 4 and 17(1) is concerned, the very language of the said notification makes it clear that it does not expressely state the urgency of taking the possession. Therefore, this notification stands vitiated in law and hence on this short ground itself the writ be accepted. To appreciate Mr. Jailiey’s argument we have to have look at the contents of the impugned notification under Section 4 and 17(1) of the Act dated 6th March, 1987, which reads as under : “WHEREAS it appears to Lt. Governor, Delhi, that the Land Properties are likely to be required to be taken by the Govt. at the public expense for the following public purposes. It is hereby notified that the land in the locality described below is likely to be required for the above purpose. This notification is made under the provisions of Section 4 of the Land Acquisition Act, to all whom it may concern. In exercise of the powers conferred by the aforesaid Section, the Lt. Governor is pleased to authorise the officers for the time being engaged in the Undertaking with their servants and workmen to enter upon and survey any land in the locality and all other acts required or permitted by that Section. The Lt. Governor being of the opinion that the provisions of sub-section ( 1 ) of the Section 17 of the said Act are applicable to this land is further pleased under sub-section (4) of the said Section, to- direct that the provisions of Section 5A shall not apply.”
(6) Admittedly the notification no where indicates the basis and the material reliving on which the Lt. Governor came to the opinion that provisions of sub-section (1) of Section 17 apply to this properly. Even in the counter affidavit filed the respondent has admitted the non mentioning of urgency. Because of the non compliance of this statutory provision, the petitioners have been deprived of their valuable right of being heard. They could not raise objections as provided under Section 5A of the Act, which right is given to them under the Statute. In order to deprive citizen of his right to defend his property there ought to have been a real urgency and not made up urgency. Sub-section (1) of Section 17 of the Act provides for special powers in case of urgency. The Supreme Court in State of Punjab & Anr. v. Gurdial Singh & Ors. observed that compulsory faking of a man’s property is a serious .matter. Hearing him before depriving him is both reasonable and preemptive arbitrariness and denial of this administrative fairness is constitutional anathema except for good reasons. Save in real urgency where public interest doe? not brook even the minimum time needed to give a hearing land acquisition authorities should not, having regard to Arts. 14 (and 19), burke an enquiry under Section 17 of the Act. .Reliance was also placed on the decision of this Court in Banwari Lal and Sons (P) Ltd. V. Union of India and Ors. Drj 1991 (Suppi.) 317 (2) Where this court was dealing with precisely this very notification under Section 4 and 17(1) dated 6th March, 1987 and declaration under Section 6 dated 10th March. 1987. The notification under Section 4 and 17(1) was declared vitiated for non compliance of the requirement of mentioning urgency in the notification itself.
(7) Mr. S. K. Mahajan appearing for the respondent tried to Justify the notification and lack of urgency in the notification by relying on the averments made by the respondent in their additional affidavit. Mr. Mahajan admitted that in the notification the ground of urgency has not been expressely stated. However, in its additional affidavit, the respondent has mentioned that due to acute shortage of accommodation the government had to invoke the provisions of Section 17(1). The details of invoicing urgency provision arc available in the files of the Department wherefrom a case of urgency can be built up. Accordingly to respondent since the provisions of Requisition and Acquisition of Immoveable Property Act was going to lapse on 10th March, 1987, therefore, the Delhi Administration would have been deprived of this property which was housing the office of the respondent because of being requisitioned. Since quite a large number of properties which were in possession of the Government Departments or in the possession of its (officers were required by the Government, on account of acute shortage of housing its Government Offices, the Administration after careful deliberation proposed to acquire those properties by invoking urgency provision It. took time for the Administration to consider the. matter and then it was decided to dispense with the enquiry under Section 5A of the said Act. The matter was first discussed on 9th July, 1980. The note, however, was put up on 27th February, 1987 indicating that since Requisition and Acquisition of Immoveable Property Act was expiring on 10th March. 3987. and there was no likelihood of its being extended by the Government of India, therefore, recourse could be had under the Act to acquire, the property before the cut out date of 10th March, 1987. Since the matter was urgent and in public interest, therefore, the provisions of Section 17(1) was resorted. Even otherwise according to Mr. Mahajan, correctness of the satisfaction of the appropriate Government on objective consideration of facts cannot, bo gone into by this Court in its writ jurisdiction,
(8) That even if these facts are taken into consideration, the ground of urgency, to my mind, has not been made out. The Delhi Administration, as per its affidavit clearly shows that it was aware of the date when the provisions of Requisition and Acquisition of Immoveable Properties Act were going to lapse i.e. 10th March, 1987. The officials of Delhi Administration diseased the matter on. 9th July, 1980 but took the decision to acquire only after seven years when the Requisition and Acquisition of Immoveable Properties Act was about to lapse then it decided to invoke the provision of urgency under Section 17(1). The factum of this area being residential has net been denied nor the fact that the D.D.A. refused to concede to its request for allowing it to use this premises for commercial purposes. Hence, it cannot be said that the Delhi Administration was not aware of the fact about the coming to an end of the Requisition and Acquisition of Immoveable Properties Act much before 10th March, 1987. Rather from it’s own showing it is apparent that the administration was aware of the expiry date of the said Act way back in 1980 but allowed to linger on the decision till March, 1987. This is nothing but laxity and lethargy on the part of the Administration. It should have taken steps to remove its offices to some confirming area as advised by the Dda way back in November. 1975. Even in the letter of Sh. S. C. Dixit. Additional Secretary (Prosecutions), DDA. to Delhi Administration he advised to shift its office to a conforming area such as District Shopping Centres like Nehru Place. Rajindera Place and other commercial areas. So much so Delhi Administration was also informed that the prosecution would be launched against it for using this resident (s) area for commercial purposes. An acquisition of a property cannot be for a purpose contrary to the statute. The petitioner has also placed on record perpetual lease deed dated 22nd July. 1989, executed by the erstwhile owner with the President of India. The said perpetual lease deed provides that the land in question will be used for residential purposes. Respondent cannot use this property for the purpose other than what is mentioned in the lease deed. The said convenants of the lease deed was executed under the Governments Grants Act and thus will prevail over the legislation to the contrary. The respondent inspite of the prohibition, contained in the lease deed and of the Master Plan of Delhi did not take any action to remove its offices to an alternative confirming area as suggested by the D.D.A, Instead it clamped the present notification under Section 17(1) of the Act without mentioning any urgency in the said notification. which is nothing but a fraud, and colourable exercise of the power of the appropriate Authority.
(9) Moreover, it would not be out of place to mention that the office of the Directorate of transport. Licensing Department, was already functioning in this building. Therefore there was no urgency to clamp this notification immediately on the eve of coming to an end of the Requisition and Acquisition of Immoveable Properties Act. In fact the Delhi Administration had sufficient time to make alternative arrangement for shifting its office. Therefore, to my mind, there was no urgency whatsoever for invoking the provisions of Section 17(1) of the Act. The contention of Mr. Mahajan that in the file of the Department, urgency has been expressed, to my mind, has no relevancy. The notification does not indicate expressely any urgency whatsoever for acquiring this land. It must be remembered that Government orders which are publicly made, cannot be allowed to be added, Amended detracted or clarified subsequently. In other words, order must stand as it is and cannot be explained at a later date even if the explanation be in regard to the reasons that activated the Government to pass that order. Reference in this regard can be had to the decision of the Supreme Court in Commissioner of Police Vs. Gurdwandas . In this view of the matter, it is not open to the Delhi Administration as of now to supply an explanation as to what was the urgency in invoking the provision of Section 17(1) of the Act Particularly, when the impugned notification remains totally mute regarding the urgency. If the respondent is now allowed to state. the reasons which prompted it to invoke Section 17(1) it would be a travesty of justice for a Court to accept such an explanation offered subsequently in. defense of the impugned notification. particularly, when the notification itself does not reveal or disclose any urgency. Hence, such an explanation in. defense of the notification has to be discarded. It is only through the notification under Section 4 read with Section 17(1) that the people become aware of the intention of the acquiring authority lo acquire the land for a public purpose. As already observed above this very notification has already been quashed in Civil Writ No. 2385192 on the same ground. The said judgment of the Division Bench has been upheld by the Supreme Court. Mr. Mahajan contended that the judgment in C.W.P. No. 2385192 is distinguishable. Moreover that is a judgment in persons and not in rem, therefore, even if this notification was quashed in C.W.P. No. 2385192 it would not operate nor binding to the facts of this case. I am afraid this reasoning is without force. The impugned notification was quashed for the reason that it did not expressly state the ground of urgency. Other observation under Section 48 even if are ignored still this notification stand vitiated because it does not expressly state the ground of urgency. It cannot now be said that the notification which is bad and stood vitiated on account of non compliance with the statutory provisions is bad qua one petitioner but legal against the other. Hence, the judgment in Civil Writ No. 2385192, to my mind. is applicable on all force to the facts of this case. As observed above in Banwari Lals case (Supra), the provision of Section 17(1) of the Act cannot be utilised to cover up laxity and lethargy of the Administration to take appropriate steps in time for making available alternative accommodation for its offices.
(10) Properties mentioned at Sr. Nos. 4, 7, 10 and Ii in the impugned notification are residential properties, however, these are being used for commercial purposes, which use is against the purpose provided in the Master Plan of Delhi as well as under the terms of the lease. All these properties which were earlier requisitioned under the Requisition and Acquisition of Immoveable Properties Act, on the lapse of the said Act on 10th March, 1987 could not have been acquired by clamping the impugned notification which is nothing but a fraud on the power of the Administration. Instead of following the provisions of law as stipulated under the Act it exercised by mala fide means, ‘ this power invoking the provision of Section 17(1) of the Act.
(11) Reliance placed by Mr. Mahajan on the decision of this Court in the case of Smt. Shakuntala B. Moda V. Union of India (4) is of no help. In that case the word “urgency” was not used in the notification, hence the attack. The Court observed that mere non mentioning of the word “urgency” would not render the notification illegal or invalid. If the urgency can be shown otherwise by the words used in the impugned notification. In the case in hand even from the reading of the notification urgency cannot be inferred. The respondent has not been able to show urgency even otherwise from the words used in the notification. In Suit. Shakuntala’s (supra) case in the notification itself it was mentioned that the land was being acquired for a public purpose namely for rehabilitation of the persons displaced or effected due to the expansion development of the Palam Air Port. It was on account of this purpose which was urgent as the displaced persons were to be rehabilitated that the Court held that that was a case of urgency so that the displaced person could have a roof over their head. The need or urgency to rehabilitate the persons displaced or elected due to expansion and development of a particular project can hardly be over-emphasised. But that is not the case in hand. Therefore, the observation of the Court in Smt. Shankutalas (supra) case is of no help to Mr. Mahajan.
(12) Similarly, in Deepak Pahwa etc. V. Lt. Governor of Delhi and Ors. the Supreme Court was considering the invoking of urgency clause under Section 17(4) and dispensing with the enquiry under Section 5A ipso facto after considerable length of time spent on inter-departmental discussion before the notification for acquisition under Section 4(1) was published. The Supreme Court observed that very often person interested in the land proposed to be acquired make various representation to the concerned authorities against the proposed acquisition. This is bound to result in a multiplicity of enquiries, communications and discussion leading invariably to delay in the execution of even urgent projects, therefore, increase the urgency and the necessity for acquisition. But in the present case these observations of the Supreme Court do not apply. The building was already in possession of Delhi Administration, therefore, there was no question of delay being attributed to the petitioners rather from the additional affidavit filed by the respondent Delhi Admn. It is clear that as far back as in 1980, they were aware of the fact that the Requisition and Acquisition of Immoveable Properties Act would lapse on 10th March 1987, but inspite of being conscious of all these facts, no action was taken either to shift the offices or issue this notification under Section 4(1) at that time and thus enable the petitioners to file objections under Section 5A of the Act rather respondent allowed time to lapse and then clamped this notification on the eve when Requisition and Acquisition of Immoveable Properties Act was going to lapse. Therefore, the observation of the Supreme Court in Deepak Pahwa’s case are not applicable to the facts of this case.
(13) Mr. Mahajan’s contention is that the urgency Is the subjective satisfaction of the Government and this Court in writ will not go into the same. Admittedly, this being a legal proposition there cannot be any querrel with the same. But the facts which have come on record do not support this subjective satisfaction theory of the respondent. The subjective satisfaction atleast must ‘be made known through the notification. But in this case the Administration has failed to indicate the same. Subjective satisfaction cannot be arbitrary. It has to be fair and just. From the material and the facts which have come on record it is not possible for this Court to hold that the urgency in this case was bonafide or that the invoking of sub-section (1) of Section 17 was not a fraud on the powers of the appropriate authority. I have no hesitation to hold that the notification under Sections 4 & 17(1) does not expressly or otherwise indicate any urgency. Accordingly the impugned notification under Section 4 and Section 17(1) stands vitiated. and therefore, quashed.
(14) The Delhi Admn. is directed to handover vacant and peaceful possession of the premises in question Along with the open land to the petitioners within one month from today as the notification in question is held to be illegal and bad in law. The possession of the petitioners property by Delhi Administration through its office is illegal and is in the nature of trespass on the property. Petitioners have submitted that the market value of the property as of today as per Government rates would be RS. 14,000.00 per sq. mtr. and would be Rs. 14 crores. To this amount if solarium at the rate of 30 per cent under the Land Acquisition Act and interest w.e.f. 1987 are added the total amount payable under the Act would be over Rs. 21 crores. If the calculation are to be based on the market value as of today the amount would be in excess of Rs. 45 crores. Without devolving this any further suffice it to say that the petitioners are also entitled to damages from 10th March, 1987 till payment. What would be the damages will be determined by the Arbitrator. In similar circumstances in Banwari Lal’s case (Supra) also this Court appointed Arbitrator to determine the damaged payable by the Delhi Administration instead of making the petitioners run to the Civil Court for that purpose. I accordingly appoint Ms. Leila Seth, retired Chief Justice of Himachal Pradesh High Court as the Arbitrator who will enter upon the reference within four weeks of the communication of this order to her. She may make the award within four months thereafter. The arbitrator will not be obliged to give reasons for his conclusions. The parties will be at liberty to produce their valuers before the Arbitrator for the assessment of damages, if they so desire. The petitioners as well as the Delhi Administration will pay a sum of Rs. 10,000.00 each to the Arbitrator as initial payment towards her fees. A copy of this order be sent to the Learned Arbitrator by the Registry.
(15) The writ petition is allowed and disposed of with the above terms. Rule is made absolute.